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PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA

Telecommunications Division RESOLUTION T-16432Carrier Branch October 19, 2000

R E S O L U T I O N

RESOLUTION T-16432. COX CALIFORNIA TELCOM, L.L.C. dba COX COMMUNICATIONS (U-5684-C). REQUEST FOR APPROVAL OF A PROGRAM DESIGNED TO RESPOND TO SPECIFIC CUSTOMER NEEDS ARISING FROM THE RECENT PUBLICATION OF LISTING INFORMATION FOR CUSTOMERS WHO HAD REQUESTED UNLISTED, NON-PUBLISHED OR PARTIALLY LISTED INFORMATION IN CERTAIN PACIFIC BELL SAN DIEGO TELEPHONE DIRECTORIES.

BY ADVICE LETTER NO. 50, FILED ON MAY 26, 2000, AND FILED A SUPPLEMENT BY ADVICE LETTER NO. 50-A ON JUNE 21, 2000._________________________________________________________________

SUMMARY

Cox California Telcom, L.L.C., dba Cox Communications (Cox), requests approval of a program which responds to the recent publication of listing information from customers who had requested unlisted, non-published or partially listed information in certain Pacific Bell (Pacific) San Diego telephone directories. This resolution approves in part the request of Cox.

This resolution approves in part Cox’s request; however, the approval of Cox’s Advice Letter No. (AL) 50 and its supplement, does not relieve Cox from any liability for possible violation of its tariff rules, Public Utilities Code and/or any other Commission rules and regulations; nor does it relieve Cox from any liability resulting from any action the Commission may take in the future. This resolution does not address the issues relating to reprinting and redistribution of new corrected directories and reclamation and destruction of the tainted directories, issues that are being considered in Rulemaking (R.) 95-04-043/Investigation (I.) 95-04-044.

Cox offers a response program to its affected customers that includes: 1) free number change plus 120 minutes of free calling, and if a customer is still not satisfied, an additional 120 minutes of free calling (Option 1); 2) free special package of services with privacy features and a Caller ID box for customers who do not want their numbers changed (Option 2); 3) no charge for listings of unlisted and non-published numbers; and 4) an escalation process for customers who are concerned about their safety because their addresses were published. In addition, Cox would not seek reimbursement of any costs associated with the response program for its affected ULTS customers. Cox’s entire response program would expire for all customers published in the East and South San Diego County directories on May 31, 2001, (or June 15, 2001, for North San Diego County customers) or when the 2001/2002 edition of those directories are issued, whichever is the later. Cox requests a temporary waiver from its applicable tariffs to provide this response program for its affected customers.

Cox is ordered to: 1) fund the Commission mandated public programs for any losses; 2) track and report all costs associated with its response program to the Telecommunications Division

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Cox Als 50 & 50-A COM/HMD

(TD) on a monthly basis until 30 days after the 2001/2002 edition of the South and East San Diego County directories are distributed or December 31, 2001, whichever is earlier; 3) provide to TD, within 60 days from the effective date of this resolution, its operating procedures developed to detect and immediately correct such software errors and/or to avoid such software errors from happening in the future; and 4) report to the Director of the TD, on a monthly basis, the total number of customers affected; the total number of customers contacted; the number of customers who have accepted Option 1, the number of customers who have accepted Option 2, the number of customers who qualified for the escalation procedures and the number of customers, by category, who have accepted Cox’s offer for additional escalation procedures, and the number of customers who have refused to negotiate with Cox or who have declined all of Cox’s offerings under the response program. This monthly reporting requirement will terminate after the Commission approves an advice letter submitted by Cox to establish that its contact efforts are reasonable and should be terminated.

BACKGROUND

On May 17, 2000, Cox met with the Directors of the Telecommunications and the Consumer Services Divisions. At that meeting, Cox indicated that in 1998, it had implemented a new com-puter software program in its San Diego system. The new program translates Cox’s customer listing information from its own database into a file format that satisfies Pacific’s requirements for listing in Pacific’s directories and in Pacific’s 411 database. Pursuant to its interconnection agreement with Pacific and for purposes of ensuring that all of Cox’s customers receive delivery of Pacific’s White Page Directory, Cox is required to transmit all of its customer listings to Pa -cific, including unlisted and non-published listings. On or about August 1999, Cox’s conversion process began failing to translate the customer privacy designator into the format required by Pa-cific that would have identified unlisted and non-published listings. Between mid-August 1999 and March 2000, Cox transmitted approximately 16,000 unlisted and non-published listings from its San Diego system to Pacific’s system, of which, approximately 13,000 listings (for 11,455 customers) were not properly identified as unlisted or non-published numbers.

Pacific publishes approximately 1.3 million White Page Directories (i.e., approximately 970,000 for distribution to existing customers and approximately 330,000 for future customers and other special orders during the year) for the South and East San Diego regions. On May 2, 2000, Pacific began distributing the White Page directories to customers in the South and East San Diego regions.

On May 4, 2000, Cox became aware of a computer software error that furnished the names, telephone numbers and addresses of its unlisted and non-published customers to Pacific for publishing in Pacific’s White Page Directories. After receiving calls from several affected customers, Cox realized that the problem had the potential to affect thousands of customers. Cox notified Pacific of the problem on May 5, 2000, and requested information regarding how many directories had been delivered, how many more were to be delivered and whether remaining deliveries could be discontinued. Pacific informed Cox that nearly 100,000 directories had already been distributed. Pacific stopped delivering the directories on May 12, 2000. By that time, Pacific had already distributed approximately 400,000 White Page Directories.

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On May 19, 2000, Cox informed Pacific in writing that it was opposed to the further distribution of the tainted directories. Cox requested Pacific to engage in further discussions regarding the reprinting, redistribution and reclamation of the tainted directories.

On May 31, 2000, Pacific again began distributing its directories of the South and East San Diego regions. On the same day, Cox filed with the Commission an emergency motion for a temporary restraining order (TRO) and for a preliminary injunction requesting that Pacific be enjoined from further distribution of the tainted San Diego White Page directories. Cox also requested that Pacific be ordered, on a prospective basis, to begin printing newly corrected directories. Due to the emergency nature of the motion, at about 4:15 p.m. on May 31, 2000, the Chief Administrative Law Judge (ALJ) requested Pacific to cease distribution of the tainted directories until a Commission ruling could be issued on Cox’s motion for a TRO and preliminary injunction. Pacific immediately stopped the distribution of the tainted directories. By that time, Pacific had already distributed approximately 440,000 White Page Directories.

On June 2, 2000, the President of the Commission issued a ruling granting Cox’s motion for a TRO requiring Pacific to cease distribution of all White Page telephone directories for the South and East San Diego regions until further notice from the CPUC or until a ruling concerning Cox’s motion for a preliminary injunction is issued, whichever occurred first. On June 8, 2000, the Commission issued Decision (D.) 00-06-042, which confirmed the President’s Ruling Granting Motion for a Temporary Restraining Order.

Later, on June 8, 2000, Pacific and Cox submitted a stipulation stating that they had “agreed on an extensive program to recover and destroy promptly the tainted directories and to correct third-party listings,” that the TRO’s prohibition on further distribution of the tainted directories should remain in effect, and that in light of these agreements, Cox was withdrawing its motion for a preliminary injunction concerning the directories, as well as a related motion for mediation. On June 12, 2000, a hearing was held in R.95-04-043/I.95-04-044 to hear testimony by Cox and Pacific witnesses concerning the program they had agreed upon to recover and destroy the tainted directories and to print new, corrected directories.

Prior to the June 8, 2000 stipulation between Cox and Pacific, Cox focused on notifying its affected customers and addressing their obvious concerns over the release of their private listings. During that time, Cox developed a notification letter and a plan to redress customer concerns. Between the period of May 13 and May 15, 2000, a notification letter was sent to all affected customers in a specially designated envelope. Cox claims that all of its affected customers have been notified of the software error. In an effort to minimize any potential impact of its error on its customers, Cox made two options available to all of its affected customers. Cox’s notification letter included the following:

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“Option 1 - Change Your Telephone Number at No Charge . If you would like to change your current phone number to a new, unlisted number at no charge to you, simply complete and return the enclosed response form. We will also provide you with 120 minutes worth of prepaid calling cards to contact friends and family who need to know your new telephone number.

Option 2 - Keep Your Telephone Number With a Special Privacy Package. If you prefer to keep your current phone number, but are concerned about receiving unwanted telephone calls, we will provide you with a special package of services. This package includes privacy features like Caller ID, Call Waiting ID, Selective Call Acceptance, Selective Call Rejection, Priority Ringing and other benefits at no charge until April 30, 2001. We will also provide you with the equipment necessary for services that display Caller ID information.”

Option 1 would require a temporary waiver of Cox’s Tariff Schedule Cal. P.U.C. A-1, Sheet 49, Section 1.13 (charges for changing telephone number), and Tariff Schedule Cal. P.U.C. C-1, Sheet 11-T, Section 2.4 (charges for prepaid calling cards) for its class of affected customers. Option 2 would require a temporary waiver of Cox’s Tariff Schedule Cal. P.U.C. A-1, Sheet 21-T, Section 1.2.1 (charges for Cox’s Privacy Package) for its class of affected customers.

Options 1 and 2 were offered to all affected customers. In addition, Cox anticipated that some of its customers would demand additional recompense. For those customers, Cox is prepared to offer credit allowances of up to $129.00 for residential customers and up to $105.00 for business customers pursuant to Cox’s California Tariff Schedule Cal. P.U.C. A-1, Sheet 151-T, Section 27.3.1.

Cox also believes that certain customers have reasonable concerns regarding their safety as a result of the publication of their directory information (particularly their addresses) and, thus may have special security needs to be addressed. Cox states that it consulted an independent panel consisting of law enforcement, domestic violence and privacy experts for purposes of classifying the nature of these security concerns and addressing them in a non-discriminatory manner. Cox divided the affected customers into four different classes and developed additional escalation procedures for them, which are set forth in Attachment 2 to AL 50. The description of the four customer classes that appears below is taken from Attachment 2, although the amounts that Cox is prepared to pay each customer class has been redacted:

Level 1: For customers who have received particular, directed threats from a specific person in the past, Cox will offer up to (REDACTED ) to assist with security and relocation expenses.

Level 2: All types of sworn law enforcement officers (including correctional officers and judges) who are in regular contact, because of their occupations, with criminals who may wish to endanger their safety. Cox will offer up to (REDACTED) to assist with the purchase of a security system and/or other appropriate safety measures.

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Level 3: Individuals who are involved in law enforcement, but who are generally not at risk as a result of their occupation (such as non-sworn support personnel). Cox will offer up to (REDACTED) to assist with appropriate security measures.

Level 4: Individuals who may have security concerns, but not as a result of occupational choice (such as teachers, relatives of officers and judges, etc.). Cox will offer these individuals up to (REDACTED) to assist with appropriate safety measures.

In Attachment 2, Cox has characterized as simple negligence the software error that resulted in the inclusion of unlisted and non-published listings in the White Page directories. Cox’s Tariff Cal. P.U.C. Schedule A-1, Rule 27 describes limitations of liability and the applicable credit al-lowances. According to Attachment 2, Cox has offered the above-described additional escala-tion procedures and compensation as a settlement to avoid any litigation claims that a customer might make to suggest that Cox was “grossly negligent”. In order to be eligible for additional compensation provided by these escalation procedures, Cox required customers to execute a waiver and release of all claims. In AL 50, Cox requested that the Commission treat these pro-cedures and these customer offerings as confidential pursuant to Pub. Util. Code § 583 and Gen-eral Order 66-C.

On June 21, 2000, Cox filed a supplement to AL 50 to modify the escalation procedures by eliminating the requirement that customers execute a waiver and release. Cox now proposes to request that customers sign a waiver and release prior to accepting the escalated offerings. However, if a customer wishes to accept the terms but declines to execute a waiver and release, Cox would still honor the offer.

On June 28, 2000, Cox sent an e-mail to TD stating that upon further consideration, Cox believes that the only thing in Attachment 2 to AL 50 that needs to remain confidential is the dollar amount associated with each level of the escalation program. Cox immediately responded to the needs of its affected customers and began offering the above identified program options during the time it was awaiting Commission approval of its AL 50 and supplement. However, Cox recognizes that all the proposed offerings are subject to the review and approval of the Commission, and has so informed its customers. Cox requests that its proposed terms and conditions be made effective immediately.

Further, Cox indicated that it would track the losses incurred by any public programs (such as the Universal Lifeline Telephone Service (“ULTS”) Fund, the Deaf and Disabled Telecommunications Equipment and Service Program, the California High Cost Funds A and B, and the California Teleconnect Fund) as a result of the credits provided. Cox proposes to reimburse the public programs for any such losses. Finally, Cox would not seek reimbursement from the ULTS Fund for any costs associated with the response program for affected ULTS customers.

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On June 19, 2000, Cox informed TD that it had discovered 23 additional customers erroneously published in the North San Diego County directory. These 23 customers had requested that their listings be unlisted, non-published or published with name and number only. Pacific began distributing the North San Diego County directories on or about June 12, 2000. According to Pacific, the North San Diego Directory contains approximately 342,000 listings. Cox discovered and informed Pacific of the error on June 14, 2000. Pacific immediately ceased distributing the North San Diego County directories. Pacific informed Cox that approximately 234,000 North San Diego County directories were slated for delivery. By the time Cox informed Pacific of the problem on June 14, 2000, approximately 69,000 of the directories had been distributed. Because these customers have the same affected interests as those identified in AL 50, Cox is extending the same offers set forth in AL 50 and its supplement to them.

As noted above, Cox filed a supplement to its AL 50 on June 21, 2000. In its supplement, Cox proposes to extend the same offers to affected customers in the North San Diego County directory that Cox has extended to customers in the South and East San Diego regions who had requested unlisted or non-published listings or asked that their listings be published with name and number only. The supplement to AL 50 also proposes changes to Cox’s response program that would apply to all customers to whom the program has been previously offered. In summary, the supplement to AL 50 proposes that Cox would make the following modifications to the response program outlined in AL 50:

1. Extend the availability of the response plan set forth in AL 50 to the 23 additional customers in North San Diego County that Cox has identified since filing Advice Letter 50. Because these customers have the same affected interests as those previously identified in AL 50, Cox proposes to extend the same offer set forth in that advice letter and this supplement to them.

2. Modify its response plan to expand its program for contacting affected customers and for informing them of the availability of the offerings set forth in AL 50 and its supplement. Cox contacted all affected customers in the East and South San Diego County, by letter, which requested that they a) return a Business Reply Card (BRC) selecting one of the options; or b) telephone the special hot-line telephone number that had been established. Since that time, approximately 94 percent of the affected customers have had affirmative contact with Cox.

Cox believes that an additional follow-up program is warranted. Cox proposes to send a second notification letter with a BRC no later than June 27, 2000 to those affected customers who did not respond to the first contact letter. The BRC would offer the same options indicated on the first notice, and would also offer customers the option of indicating that “no action is necessary” to address their privacy concerns. The second BRC would restate Cox’s customer hot-line telephone number and would include an e-mail address for those customers who preferred an alternate means of contacting Cox.

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Subsequently, no later than two weeks after sending the second notice, Cox would begin its attempts to contact all remaining non-responsive customers by telephone in a final effort to ensure that all affected customers were aware of the response program. Cox also indicated its willingness to continue to advise the Commission on the effectiveness of its outreach plan.

3. Modify the response plan to allow for the provision of additional calling card minutes to customers who request Option 1 and who are not satisfied with initial offering of 120 free minutes. In that event, Cox proposes to offer those customers who accept Option 1 an additional 120 free minutes (for a total of up to 240 minutes). Cox believes that the additional 120 calling card minutes would satisfy many customers who are aggrieved by the disclosure of their unlisted telephone numbers.

4. Modify the response plan to waive the tariff charges for unlisted and non-published service for all affected customers for one year. Cox pointed out in AL 50 that it has not been collecting these charges (Tariff Schedule Cal. P.U.C. A-1, Sheet 33-T, Section 1.8 charges for non-published service and for an unlisted telephone number) from any of its customers, including the customers affected by the directory publication. However, Cox wants to make clear by this supplement that even if it begins to collect those charges from its customers who have requested unlisted or non-published service generally, it would waive those charges for the affected customers up to May 31, 2001, or until when the 2001/2002 edition of the directories are issued, whichever is later. In addition, Cox’s entire response program (including the distribution of free Caller ID boxes and Cox’s offer not to seek ULTS reimbursement for the costs associated with the response program for affected ULTS customers) would expire for all customers published in the East and South San Diego County directory on May 31, 2001, (or June 15, 2001, in case of the North San Diego County listed customers) or when the 2001/2002 edition of the directories are issued, whichever is later.

5. Request a waiver of Pub. Util. Code § 491 to allow the Commission and its staff to process AL 50 as expeditiously as possible. In AL 50, Cox had requested expedited treatment and approval of its response program such that any deviations from Cox’s tariffs could become effective immediately. In its supplement, Cox explicitly requests a waiver of Pub. Util. Code § 491, which provides for a notice period for all Commission approved changes in its tariffs for affected customers.

6. In AL 50, Cox had stated that it would inform the Commission of any further efforts that might be undertaken to reprint, redistribute and/or reclaim the tainted directories. In the supplement to AL 50, Cox states that it has worked jointly with Pacific to develop a program whereby the current East and South San Diego directories, which contain the private listings of Cox’s customers, would be retrieved and destroyed and new, corrected directories would be printed and distributed. Cox points out that the details of this program have been provided to the Commission in the hearing that was held in the Local Competition Docket, R.95-04-043/I.95-04-044, on June 12, 2000.

7. Finally, Cox proposes to modify the escalation procedures by eliminating the

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requirement that customers who request the additional escalation measures execute a waiver and release. While Cox states that it will continue to request that customers sign a waiver and release prior to accepting the escalated offerings, Cox states that it will fulfill the offer terms even if the customer declines to execute a waiver and release.

NOTICE/PROTESTS

Notice of Advice Letter No. 50 and 50-A were published in the Commission Daily Calendar of June 5, 2000 and June 23, 2000, respectively. Cox mailed a copy of Advice Letter No. 50 and its supplement to competing and adjacent utilities and other utilities. No protest to this Advice Letter has been received.

DISCUSSION

As noted above, Cox states that on or about August 1999, a computer software program began failing to translate the customer privacy designator into the format required by Pacific that would have identified unlisted and/or non-published listings. Between mid-August 1999 and March 2000, Cox transmitted approximately 16,000 unlisted and non-published listings from its San Diego system to Pacific, of which approximately 13,000 listings (for 11,455 customers) were not properly identified as unlisted or non-published numbers. On June 14, 2000, Cox discovered 23 additional customers erroneously published in the North San Diego County directory. These customers had requested that their listings be unlisted, non-published or published with name and number only.

Cox’s Tariff Schedule Cal. P.U.C. A-1, Rule No. 27, describes Cox’s liability in situations where the utility or its agents make an error or a mistake. Tariff Rule 27 states in pertinent part:

RULE 27 LIMITATION OF LIABILITY

27.1 LIABILITY

1. The provisions of this rule do not apply to errors and omissions caused by willful misconduct, fraudulent conduct or violations of laws.

2. In the event an error or omission is caused by the gross negligence of Cox or its Agents, the liability of Cox and its Agents shall be limited to and in no event exceed the sum of $10,000.

3. Except as provided in Sections 1 and 2 of this rule, the liability of Cox and its Agents for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in any of the services or facilities furnished by Cox or to Cox by its Agents, including exchange, toll, private line, alphabetical directory listings (excluding the use of bold face type), 9-1-1 services, and all other services shall in no event exceed an amount equal to the pro rata charges to the customer for the period during which the services or facilities are affected by the mistake, omission, interruption, delay, error or defect,

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provided, however, that where any mistake, omission, interruption, delay, error or defect on any one service or facility affects or diminishes the value of any other service said liability shall include diminution, but in no event shall exceed the total amount of the charges to the customer for all services or facilities for the period affected by the mistake, omission, interruption, delay, error or defect.

27.3 CREDIT ALLOWANCES – DIRECTORY

Subject to the provisions of Section 27.1 paragraph 3 of this rule Cox shall allow, for errors or omissions in alphabetical telephone directories (excluding the use of bold face type), an amount within the following limits:

1. For listings in alphabetical telephone directories furnished without additional charge, an amount not in excess of the minimum monthly charge to the customers for exchange service during the effective life of the directory in which the error or omission occurred.

2. For listings and lines of information in alphabetical telephone directories furnished at additional charge, an amount not in excess of the charge for that listing during the effective life of the directory in which the error or omission occurred.

3. For listings in information records furnished without additional charge, an amount not in excess of the minimum monthly charge to the customer for exchange service during the period the error or omission continued.

4. For listings in information records furnished without additional charge, an amount in excess of the charge for the listing during the period the error or omission continued.

5. For listings in telephone directories furnished in connection with mobile telephone service, an amount not in excess of the guarantee and fixed charges for the service during the effective life of the directory in which the error or omission occurred.

As indicated above, Cox’s tariff Rule 27 identifies the liability of Cox or its Agents in case of an error or omission. In this resolution, the issue of the liability of Cox or its Agents for providing non-published customer information to Pacific for inclusion in Pacific’s White Page directories is not addressed. Cox’s request for temporary authority to provide credit offers to its affected customers is the only request addressed.

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As noted above, on May 26, 2000, Cox filed AL 50 that included the credits Cox is proposing to offer to its affected customers to help minimize any potential impact from the computer software error of furnishing the names, telephone numbers and addresses of unlisted and/or non-published customers in Pacific’s directories. On June 21, 2000, Cox filed a supplement to AL 50. In its supplement AL 50-A, Cox proposes to modify its original offers to accommodate additional cus-tomer concerns and to clarify some offers. Cox’s credit offers and proposal are summarized as follows:

1. Option 1: For those customers who wish to change to a new, unlisted phone number, Cox would make that change at no cost to the customer. In addition, Cox would provide up to 120 minutes worth of prepaid calling cards to allow the customer to contact friends and family who might have a need to know of their new telephone number. Customers who are not satisfied with 120 minutes of free calling would be offered an additional 120 minutes (i.e., a total of 240 minutes) of free prepaid calling cards. Option 1 is extended to all affected customers up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

2. Option 2: For those customers who wish to keep their existing phone number but are concerned about receiving unwanted telephone calls, Cox would provide them with a special package of services. The services include various privacy features (such as Caller ID, Call Waiting ID, Selective Call Acceptance, Selective Call Rejection, Priority Ringing and other benefits), as well as the necessary equipment to display Caller ID information, all at no charge to the customers. Option 2 is extended to all affected customers up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

3. In addition to Options 1 and 2 above, for those customers who demand additional recompense, Cox proposes to offer credit allowances of up to $129.00 for residential customers and up to $105.00 for business customers pursuant to Cox’s California Tariff Schedule Cal. P.U.C. A-1, Sheet 151-T, Section 27.3.1. This offer is extended to all affected customers up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

4. For customers who have reasonable concerns regarding their safety as a result of the publication of their directory information (particularly their address), Cox has devised the additional escalation procedures. Cox would request that customers sign a waiver and release prior to accepting an escalated offering, but Cox would fulfill the offer terms if accepted by the customer even in those instances where a customer willing to accept an escalation procedure is unwilling to execute a waiver and release. The escalation procedures are described in redacted form earlier in this resolution.

5. In the past, Cox did not bill customers who requested their telephone numbers to be unlisted or non-published. Cox would continue to waive the applicable unlisted and

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non-published number charges to affected customers for a twelve-month period commencing on the date Pacific began distribution of the tainted directories or until when the 2001/2002 edition of the directories are issued, whichever is later.

6. Cox proposes to track the losses incurred by any public programs as a result of the credits provided. These programs include the Universal Lifeline Telephone Service (“ULTS”) Fund, the California Relay Service and Communications Devices Program, the California High Cost Funds A and B, and the California Teleconnect Fund. Cox would reimburse the public programs for any such losses resulting from its credit offers.

7. Cox would not seek reimbursement from the ULTS Fund for any costs associated with the response program for its ULTS customers. This would apply up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

Cox states that in developing the escalation procedures for customers who have reasonable concerns about their safety, Cox consulted a panel of experts consisting of law enforcement, domestic violence and privacy experts. TD does not have any knowledge of the qualifications of the panel members. However, the four classifications of risk levels developed by Cox with the assistance of this panel of experts does not appear to be unreasonable.

In Attachment 2 of AL 50, after setting forth the four levels of escalation procedures it is prepared to undertake for affected customers, Cox states that “the errors that resulted in the inclusion of unlisted and non-published listings in the White Page directories was the result of mistakes that are properly characterized as simple negligence,” as to which Cox’s liability is limited to the credit allowance set forth in Cox’s tariffs. In Cox’s opinion, providing affected customers with the escalation procedures would constitute a voluntary offering of compensation in the form of a settlement agreement to avoid the need to litigate any potential customer claims for “gross negligence”, which are also subject to a limitation-of-liability provision in Cox’s tariffs.

In this resolution we are merely approving Cox’s plan to offer affected customers the escalation procedures described in Attachment 2. We are not expressing an opinion on how Cox’s conduct relating to the listing errors should be characterized for purposes of negligence law, because that issue is for the courts to decide, or under any other form of legal liability. It should also be noted that the Commission is reexamining limitation-of-liability provisions in Rulemaking 00-02-004, which concerns consumer rights and consumer protection rules for telecommunications utilities.

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In AL 50, Cox states that in the event a customer claims he or she is at risk but refuses to respond to a simple questionnaire to assist Cox in evaluating the customer’s claim, that customer would not be eligible for the compensation provided for in connection with the additional escalation procedures. Cox indicates that without customer provided information regarding occupation, it would not be able to associate risk levels with a customer’s situation, and therefore would not able to offer the escalation procedures.

In its supplement to AL 50, Cox revised its position on whether customers should be required to sign a waiver and release prior to accepting the escalated offerings. Cox’s new position is that the company would fulfill the escalated offer terms, if accepted by the customer, even if the customer declines to execute a waiver and release. We decline to approve or disapprove Cox’s request in this respect. Cox’s General Release of Claims (GRC) form pertains to the waiver of damages in a civil action. The Commission has repeatedly held that it has no jurisdiction over negligence or intentional tort claims because it cannot award damages. (See Ad Visor, Inc. v. General Tel. Co. of California (1977) 82 CPUC 2d 685, slip op. at 5 [D.87958]; Ronald I. May & Assoc. v. Pacific Bell (1991) 41 CPUC 2d 437, slip op. at 2 [D.91-10-008].) The validity of a waiver and release pertaining to a damages claim is a matter better addressed by the courts.

TD considers reasonable Cox’s request for a temporary deviation from its tariffs to offer credits to its affected customers and to ensure that its affected customers are aware of the response program. However, TD notes that beginning from the time Cox first contacted its customers up to June 21, 2000, only about 40 percent of the affected customers have contacted Cox. TD considers 40 percent a low response rate considering the time period between May 13, 2000 (when the first contact letter was sent) and June 21, 2000. Therefore, to evaluate the progress made by Cox in contacting its affected customers, TD recommends that Cox should report to the Director of the TD, on a monthly basis until Cox has made a contact with all of its affected customers regarding its offers, the total number of customers affected; the total number of customers who have been contacted; the number of customers who have accepted Option 1; the number of customers who have accepted Option 2; the number of customers who qualified for the escalation procedures and the number of customers, by category, who have accepted Cox’s offer of escalation procedures; and the number of customers who have refused to negotiate with Cox or who have declined all of Cox’s offerings under the response program. This monthly reporting requirement will terminate after the Commission approves an advice letter submitted by Cox to establish that its contact efforts were reasonable though they may not have resulted in an affirmative contact with every customer.

As noted above, Cox states that it has worked jointly with Pacific to develop a program whereby the current East and South San Diego directories would be retrieved and destroyed, and new, corrected directories would be printed and distributed. The details of this program were provided to the Commission in the hearing held in the Local Competition Docket, R.95-04-043/I.95-04-044, on June 12, 2000. Accordingly, this resolution does not address the issues relating to the retrieval and destruction of the tainted directories, or the reprinting and redistribution of corrected directories. In this resolution, TD is only addressing Cox’s request for a temporary deviation from its tariffs to provide credits to its affected customers.

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Cox has voluntarily made its offers to minimize the impact of its computer software error on its customers, and TD supports these efforts to correct the mistake. However, Cox’s request for temporary authorization to offer a credit to affected customers may only cover a portion of its liabilities described in Cox’s tariff Rule 27. Cox’s offer to voluntarily compensate affected customers in this advice letter does not relieve Cox from any liabilities for possible violations of the Public Utilities Code, its own tariff rules, and/or any other Commission rules and regulations that may be applicable to this situation; nor does it relieve Cox from any action the Commission may take in the future.

As noted above, between mid-August 1999 and March 2000, Cox erroneously transmitted approximately 13,000 unlisted and non-published listings from its San Diego system to Pacific’s. Cox states that it became aware of its computer software error on May 4, 2000, after receiving calls from its customers. TD notes that it was a long period before Cox detected the error in its computer software system. TD recommends that Cox be ordered to implement procedures to detect and immediately correct such software errors and/or to avoid such software errors in the future. Cox should be ordered to file a report with the Director of the Telecommunications Division, within 60 days from the effective date of this resolution, explaining the operating procedures it has implemented to detect and immediately correct such software errors and/or to avoid such software errors in the future.

TD considers Cox’s request to offer credits to its affected customers to be reasonable. However, TD recommends that Cox be ordered to track and report all costs associated with each Cox’s offer to the Director of the TD, on a monthly basis until 30 days after the 2001/2002 edition of the South and East San Diego County directories are distributed or December 31, 2001, whichever is earlier. The monthly report should identify the costs associated with each offer for the month just ended, and should be filed with the Director of the Telecommunications Division on the 15th of each month. TD also recommends that Cox be ordered to track and report to the Director of the TD, on a monthly basis until December 31, 2001, the losses associated with each of the public programs for which Cox has promised to reimburse as a result of Cox offering credits to its affected customers.

TD concurs with Cox for the need of immediate approval of these advice letters due to privacy and security concerns. Cox is requesting an exemption from Pub. Util. Code § 491, which requires a utility to provide 30 days’ notice for any changes in rates, rules, classification, service, or privileges, etc. AL 50 was filed on May 26, 2000, and by the time this resolution is considered, more than 30 days will have elapsed from the date of the advice letter filing. It is therefore appropriate to grant Cox an exemption from section 491 with respect to the measures proposed in AL 50 and the supplement thereto.

In light of the seriousness of the situation, we find TD’s recommendations above to be reasonable.

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The draft alternate resolution of Commissioner Duque in this matter was mailed to the parties in accordance with Pub. Util. Code § 311(g)(1) on October 5, 2000. Comments were filed on October 13, 2000 by Cox. In its comments, Cox encourages the Commission to adopt this Alternate Draft. Cox also proposes minor language clarifications which we incorporate herein.We update the response figures to reflect Cox’s 34th report to the Telecommunications Division. In addition, we revise text at page 11 to be consistent with ordering paragraph 7.

FINDINGS

1. In 1998, Cox implemented a new computer software program in its San Diego system for the purpose of translating Cox’s customer listing information from its own database into a file format that satisfied Pacific’s requirements for listing in its directories and in its 411 database.

2. Pursuant to its interconnection agreement with Pacific and for purposes of ensuring that all of Cox’s customers receive delivery of Pacific’s White Page Directory, Cox is required to transmit all of its customer listings to Pacific, including unlisted and non-published listings.

3. In April 2000, Pacific published approximately 1.3 million White Page Directories (i.e., approximately 970,000 for distribution to existing customers and approximately 330,000 for future customers and other special orders during the year) for the South and East San Diego regions. Pacific’s White Page Directories for the South and East San Diego regions included customer data provided by Cox.

4. On May 2, 2000, Pacific began distributing White Page Directories for the South and East San Diego regions.

5. On May 4, 2000, Cox became aware that Pacific’s White Page Directories for the South and East San Diego regions contain the names, telephone numbers and addresses of some Cox customers who had requested unlisted and non-published status.

6. Cox discovered that on or about August 1999, its computer software program began failing to translate the customer privacy designator into the format required by Pacific that would have identified unlisted and non-published listings.

7. Between mid-August 1999 and March 2000, Cox transmitted approximately 16,000 unlisted and non-published listings from its San Diego system to Pacific, of which, approximately 13,000 listings (for 11,455 customers) were not properly identified as unlisted or non-published numbers.

8. Cox’s California Tariff Schedule Cal. P.U.C. A-1, Rule No. 27, describes the liability attributable to Cox or its agents in cases where Cox or its agents make an error or a mistake.

9. Pacific ceased delivering the directories on May 12, 2000. By that time, Pacific had already distributed approximately 400,000 White Page Directories.

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10. Between May 13 and May 15, 2000, Cox sent a notification letter to all of its 11,455 affected customers offering them two options for remedying the situation.

11. On May 17, 2000, Cox met with the Directors of the Telecommunications and the Consumer Services Divisions and informed them about the directory-listing situation.

12. On May 26, 2000, Cox filed Advice Letter No. 50 with the Commission.

13. On May 31, 2000, Pacific began redistributing its directories for the South and East San Diego regions, but ceased the redistribution after a request from the Chief ALJ. By the time of that request, Pacific had already distributed an additional 40,000 White Page Directories.

14. On May 31, 2000, Cox filed with the Commission an emergency motion for a temporary restraining order (TRO) and for a preliminary injunction requesting that Pacific be enjoined from further distribution of the San Diego White Page directories that contained the listing of Cox’s customers who had requested unlisted and/or non-published status. Cox’s motions also requested that Pacific be ordered, on a prospective basis, to begin printing new, corrected directories.

15. On June 2, 2000, the President of the Commission issued a ruling granting Cox’s motion for temporary restraining order.

16. On June 8, 2000, the Commission issued D.00-06-042, which confirmed the President’s June 2, 2000, Ruling granting Cox’s motion for a temporary restraining order.

17. On June 8, 2000, Cox and Pacific filed in R.95-04-043/I.95-04-044 a stipulation withdrawing Cox’s two motions, and stating that Cox and Pacific had agreed upon a program to recover and destroy promptly the tainted directories, to correct third-party listings, and to reprint new directories.

18. On June 12, 2000, a hearing was held in R.95-04-043/I.95-04-044 to take evidence regarding the details of the plan described in the June 8, 2000 stipulation between Cox and Pacific.

19. On June 14, 2000, Cox discovered that information regarding 23 additional customers who had requested that their listings be unlisted, non-published or published with name and number only had been erroneously published in the North San Diego County directory.

20. On June 21, 2000, Cox filed a supplement to AL 50. In its supplement AL 50-A, Cox modified its offers to accommodate additional customer concerns and to clarify some options. Cox’s proposals and credit offers to its affected customers are summarized as follows:

Option 1. The customer, who wish to change to a new, unlisted phone number, Cox would make that change at no cost to the customer. In addition, Cox would

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provide up to 120 minutes worth of prepaid calling cards to allow the customer to contact friends and family who might have a need to know of their new telephone number. Those customers who are not satisfied with 120 minutes of free calling would be offered an additional 120 minutes (i.e., a total of 240 minutes) of free prepaid calling cards. This offer is extended to all affected customers up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

Option 2. For those customers who wish to keep their existing phone number, but are concerned about receiving unwanted telephone calls, Cox would provide a special package of services that includes various privacy features (such as Caller ID, Call Waiting ID, Selective Call Acceptance, Selective Call Rejection, Priority Ringing and other benefits), as well as the necessary equipment to display Caller ID information at no charge to the customers. This offer is extended to all affected customers up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

In addition to Options 1 and 2 above, for customers who demand additional recompense, Cox would offer them credit allowances of up to $129.00 for residential customers and up to $105.00 for business customers pursuant to Cox’s California Tariff Schedule Cal. P.U.C. A-1, Sheet 151-T, Section 27.3.1. This offer is extended to all affected customers up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

For customers, who have reasonable concerns regarding their safety as a result of the publication of their directory information (particularly their address), Cox has developed additional escalation procedures that classify these customers into one of four risk levels and offer compensation based on the risk level assigned to the customer.

In the past, Cox has not billed customers for having requested their telephone numbers to be unlisted or non-published. Cox would continue to waive the applicable unlisted and non-published number charges to affected customers for a twelve-month period commencing on the date Pacific began distribution of the tainted directories or until when the 2001/2002 edition of the directories is issued, whichever is later.

.

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Cox offers to track the losses incurred by any public programs (such as the Universal Lifeline Telephone Service (“ULTS”) Fund, the Deaf and Disabled Telecommunications Equipment and Service Program, the California High Cost Funds A and B, and the California Teleconnect Fund) as a result of the credits provided. Cox will reimburse these public programs for any such losses.

Cox would not seek reimbursement from the ULTS Fund for any costs associated with changing the telephone number of an affected ULTS customer up to May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or until when the 2001/2002 edition of the directories are issued, whichever is later.

21. For Option 1, Cox requests a temporary waiver of its Tariff Schedule Cal. P.U.C. A-1, Sheet 49, Section 1.13 (charge for changing telephone number), and Tariff Schedule Cal. P.U.C. C-1, Sheet 11-T, Section 2.4 (charges for prepaid calling cards), for its class of affected customers. For Option 2, Cox requests a temporary waiver of its Tariff Schedule Cal. P.U.C. A-1, Sheet 21-T, Section 1.2.1 (charges for Cox’s Solution Package), for its class of affected customers. For waiving the charges for listings of unlisted and non-published numbers, Cox requests a temporary waiver of Tariff Schedule Cal. P.U.C. A-1, Sheet 33-T, Section 1.8 (charge for non-published service or for an unlisted telephone number) for the affected customers. Cox’s request for a temporary waiver of its tariffs for affected customers is reasonable.

22. In this resolution, TD is not addressing the issue of the liability of Cox or its Agents for providing non-published customer information to Pacific for inclusion in Pacific’s White Page directories. Cox’s request for temporary authorization to offer a credit to affected customers may only cover a portion of its liabilities described in its tariff Rule 27.

23. Cox’s offer to voluntarily compensate affected customers in this advice letter does not relieve Cox from any liabilities for possible violations of the PU Code, its own tariff rules, and/or any other Commission rules and regulations that may be applicable to this situation; nor does it relieve Cox from any action the Commission may take in the future.

24. In this resolution, TD is not addressing issues relating to the retrieval and destruction of the tainted directories, or issues relating to the reprinting and redistribution of new, corrected directories. Those issues are before the Commission in R.95-04-043/I.95-04-044. In this resolution TD is only addressing Cox’s request for temporary authority to provide credits to its affected customers.

25. Cox revised its response plan in the supplement AL 50-A. TD considers Cox’s revised response plan to be reasonable. However, TD recommends that Cox should be ordered to report to the Director of the TD, on a monthly basis, until Cox has made a contact with all of its affected customers regarding its offers, the total number of customers affected; the total number of customers who have been contacted; the number of customers who have accepted Option 1, the number of customers who have accepted Option 2, the number of customers who have qualified for the escalation procedures, the number of customers, by category, who have accepted one of Cox’s offers; and the number of customers who have

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refused to negotiate with Cox or who have declined all of Cox’s offerings under the response program. This monthly reporting requirement will terminate after the Commission approves an advice letter submitted by Cox to establish that its contact efforts were reasonable though they may not have resulted in affirmative contact with every customer.

26. In view of the long period of time between the time that Cox began transmitting erroneous listings to Pacific on account of the computer software error (in mid-August 1999) and the time that Cox became aware of these erroneous listings due to customer calls (on May 4, 2000), Cox should be required to implement procedures to detect and immediately correct such errors, and to avoid such software errors in the future. Cox should be ordered to file a report with the Director of the Telecommunications Division, within 60 days from the effective date of this resolution, explaining the operating procedures it has implemented to detect and immediately correct such software errors, and to avoid them in the future.

27. TD considers Cox’s request to offer credits to be reasonable. However, TD recommends that Cox be ordered to track and report all costs associated with each Cox’s offer to the Director of the TD, on a monthly basis until 30 days after the 2001/2002 edition of the South and East San Diego County directories are distributed or December 31, 2001, whichever is earlier. The monthly report should identify costs associated with each offer, separately, for the previous month that ended and should be filed with the Director of the Telecommunications Division on the 15th of each month.

28. On June 14, 2000, Cox discovered 23 additional customers erroneously published in the North San Diego County directory. These 23 customers had requested that their listings be unlisted, non-published or published with name and number only. Because these customers have the same interests as those customers identified in AL 50, Cox extended the same offers set forth in ALs 50 and 50-A to them.

29. TD recommends that Cox be ordered to track and report the losses associated with each of the public program as a result of Cox offering credits to its affected customers, that Cox promises to reimburse, to the Director of the TD, on a monthly basis until 30 days after the 2001/2002 edition of the South and East San Diego County directories are distributed or December 31, 2001, whichever is earlier.

30. In this resolution, the Commission is not addressing the issue of whether Cox’s computer software error that resulted in the inclusion of unlisted and non-published number listings in Pacific’s White Page directories constitutes “negligence” or “gross negligence” as those terms are used in Cox’s tariffs or Cox’s liability under any other legal standard.

31. TD considers reasonable Cox’s request for a temporary deviation from its tariffs to offer credits to its affected customers, and to ensure that its affected customers are aware of the response program reasonable.

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32. TD concurs with Cox for the need of immediate approval of these advice letters due to privacy and security concerns. Cox is requesting an exemption from Pub. Util. Code § 491, which requires a utility to provide 30 days’ notice for any changes in rates, rules, classification, service, or privileges, etc. In view of the privacy and security concerns described herein, Cox’s request is reasonable and should be granted.

33. Cox’s request that the Commission keep under seal the amounts that Cox is prepared to pay to customers who qualify for and accept one of the escalation procedures set forth in Attachment 2 to AL 50, is reasonable and should be granted.

THEREFORE, IT IS ORDERED that:

1. Cox’s request for authorization for a temporary deviation from its tariffs until the 2001/2002 edition of the San Diego directories are issued and to voluntarily offer credits to affected customers as specified in Advice Letter No. 50 and its supplement, is granted. Cox’s request for temporary authorization to offer credits to the affected customers may only cover a portion of its liabilities described in Cox’s tariff Rule 27. However, the approval of Cox’s Advice Letter No. 50 and its supplement, does not relieve Cox from any liability for possible violations of its applicable tariff rules, Pub. Util. Code, and/or the Commission rules and regulations as applicable; nor does it relieve Cox from any liability resulting from any action the Commission may take in the future.

2. This temporary authorization to offer credits to affected customers shall expire for the South and East San Diego County affected customers on May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or when the 2001/2002 edition of the directories are issued, whichever is later.

3. Because of the privacy and security concerns of affected customers, Cox’s request for immediate approval of Advice Letter No. 50 and its supplement is granted.

4. Cox shall file a report with the Director of the Telecommunications Division, within 60 days from the effective date of this resolution, explaining the operating procedures Cox has implemented to detect and immediately correct such software errors and/or to avoid such software errors in the future.

5. Cox shall track and report all costs associated with offers to its affected customers, to the Director of the TD, on a monthly basis until 30 days after the 2001/2002 edition of the South and East San Diego County directories are distributed or December 31, 2001, whichever is earlier. The monthly report shall identify the costs associated with each offer for the previous month that ended and be filed with Director of the Telecommunications Division on the 15th of each month.

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6. Cox shall track and report the losses associated with each of the public program as a result of Cox offering credits to its affected customers, to the Director of the TD, on a monthly basis until 30 days after the 2001/2002 edition of the South and East San Diego County directories are distributed or December 31, 2001, whichever is earlier. These programs include the Universal Lifeline Telephone Service (ULTS) Fund, the Deaf and Disabled Telecommunications Equipment and Service Program, the California High Cost Funds A and B, and the California Teleconnect Fund. Cox shall reimburse these public programs for any such losses.

7. Cox shall not seek reimbursement from the ULTS Fund for any costs associated with the response program for its affected ULTS customers. This requirement shall expire on May 31, 2001, (or June 15, 2001, for North San Diego County affected customers) or when the 2001/2002 edition of the directories are issued, whichever is later.

8. Cox shall report to the Director of the TD, on a monthly basis until Cox has contacted all of its affected customers regarding its offers, the total number of customers affected; the total number of customers who have been contacted; the number of customers who have accepted Option 1; the number of customers who have accepted Option 2; the number of customers who qualified for the escalation procedures and the number of customers, by category, who accepted Cox’s offer of escalation procedures; and the number of customers who have refused to negotiate with Cox or who have declined all of Cox’s offerings under the response program. This monthly reporting requirement will terminate after the Commission approves an advice letter submitted by Cox to establish that its contact efforts were reasonable though they may not have resulted in affirmative contact with every customer.

9. The amounts that Cox is prepared to pay to customers who qualify for and accept one of the

escalated offers set forth in Attachment 2 to AL 50 shall remain under seal until further order of the Commission, the Commissioner or Administrative Law Judge (ALJ) assigned to Rulemaking 95-04-043/Investigation 95-04-044, or the ALJ then designated as Law and Motion Judge.

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This Resolution is effective today.

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I hereby certify that this Resolution was adopted by the Public Utilities Commission at its regular meeting on October 19, 2000, at Los Angeles, California. The following Commissioners approved it:

_______________________WESLEY M. FRANKLINExecutive Director

HENRY M. DUQUEJOSIAH L. NEEPERRICHARD A. BILAS Commissioners

I dissent/s/ LORETTA M. LYNCH President

I dissent/s/ CARL W. WOOD Commissioner

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